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A FURTHER CONSIDERATION 



OF 



THE DANGEROUS 



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CAUSES WHICH HAVE LED TO IT, 



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BY A MARYLANDER. 



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BALTIMORE : 
THE SUN JOB PRINTrNG ESTABLISHMENT. 
1867. 



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The writer's reasons for the publication of tliis pamphlet are 
stated in its commencement. The labor of preparing it and the 
one of last month, (if it had not been, as it was, a labor of 
duty,) will be fully compensated, if they shall be found to 
contribute in any degree to correct in the public mind the Con- 
stitutional errors he has endeavored to expose, and to cause the 
people of the country to come to the rescue of our institutions 
from the dangers in which they are involved, and to the relief 
of our Southern brethren and their restoration to every Constitu- 
tional right. 

REVERDY JOHNSON. 

Baltimore, November \bth, 1867. 



The Condition of the Country. 



In the pamphlet entitled '' The Dangerous Condition of the 
Country," &c., issued during the last month, the writer, 
amongst other things, discussed the meaning of the clause in 
the Constitution of the general Government which provides 
th^at "the United States shall guarantee to every State in this 
Union a republican form of government." At the request of 
friends in Maryland and in other States, he proposes to pursue 
that inquiry further, and also to expose what he believes to be 
perilous errors in relation to other clauses of the Constitution. 

I. The meaning of the clause of guarantee. It is obvious 
that the statesmen of '89 considered the several State govern- 
ments, then existing, as republican in form. Their purpose 
therefore, was to secure to each State a government of like form 
with that which each possessed at that time. Upon any other 
construction of the clause it would have been the duty of the 
first Congress assembled under the Constitution to have pro- 
vided for such a change in the government of each State as 
would, according to their view, have made it republican. 
This was not done, nor was the idea of its necessity suggested 
until within the last year or two. The fact of this long and 
settled acquiescence of Congress and of the people of the coun- 
try in the opinion of our Fathers, that the State governments 
were republican, should be held conclusive upon the p(nnt. 
Any other view would charge the members of the first Congress, 
(most of whom were members of the convention which framed 
the Constitution,) and of eacli succeeding one, with gross 
io-riorance, or a flagrant dereliction of duty. It would, also, 



impute to the people the sino;ular error of not understanding 
the nature of their own State governments. The guarantee 
deals exclusively with the form of government, and not 
with the powers conferred upon it. After the Declaration of 
Independence, and down to the adoption of the Constitution, 
each of the State governments was sovereign, and possessed 
all the powers which its people might endow it with. 
This sovereignty and scope of authority are now limited only 
by the powers conferred upon the general Government, and the 
restrictions imposed upon the States. Over their merely inter- 
nal concerns their jurisdiction is as paramount as it was before 
the Constitution was adopted. As has been well said, theirs 
is a " domestic sovereignty" as contradistinguished from that 
external sovereignty which belongs to the general Government. 
That the regulation of the elective franchise was in the States 
before '89 will be admitted. That it was not the design of the 
Constitution to take it away, or to limit it, is perfectly clear ; 
first, because Congress has no powers except such as are dele- 
gated, and this is not delegated ; and, second, because the 
power is expressly recognised as a continuing one in the 
States, in the second section of the first article, which pro- 
vides that in the choice of members of the House of Rep- 
resentatives by the people of the States the electors " shall 
have the qualifications requisite for electors of the most 
numerous branch of the State Legislature." Thus there is 
not only no authority given to Congress to regulate the 
franchise, but a clear inhibition of it ,by the express adop- 
tion of the State regulations. Can it be believed that the 
men of '89, who had but recently emerged triumphantly 
from a war to establish republican liberty, would have failed 
to remodel their State governments so as to make them 
republican in form, if they had thought they were not so 
already? The history of that struggle and their subsequent 
conduct shews that they abjured monarchical and aristocratic 
governments as, in their judgment, fatal to freedom. Will 
any reasonable man question that, in the opinion of its framers 
and of the people who ratified it, the Constitution of the United 



States creates a government republican in form ? To do so 
would be to impute hypocrisy to both, for, they all not only 
professed to admire that form, but almost to detest every other, 
being of opinion that that, and that only, could secure the 
liberty to acquire which they had, for a period of seven years, 
poured out their treasure and their blood. This being so, 
then, in the judgment of our forefathers that government is in 
form republican. And yet, as has been shewn, it possesses 
no power over the elective franchise. On the contrary, it 
leaves that to be regulated by governments subordinate to 
itself — the States. It also makes one branch of its legislature 
to consist of a territorial representation, without regard to the 
extent of each territory or the population belonging to it. The 
smallest of the original States in limits and population, Rhode 
Island and Delaware, were given an equal voice with New York 
and Pennsylvania iy that branch, the Senate. And this pro- 
vision was made to apply to every State which might thereafter 
be admitted into the Union, and was deemed so vital to the 
continuing existence of the Union that it was placed beyond 
the power of the people to change it without the consent of 
the State to be affected, the Constitution providing "that no 
State, without its consent, shall be deprived of its equal suf- 
frage in the Senate." — Art. V. 

It is obvious, therefore, that the wise and patriotic men of 
those days considered the unrestricted powers of the States over 
the elective franchise to be perfectly consistent with a repub- 
lican form of government, and that even the absence of any 
authority over it in the general Government, and the leaving 
Federal elections to be held according to State regulations were 
also perfectly consistent with the idea that the Grovernment 
of the Union is republican. That they did not hold uni- 
versal suffrage or equality of representation to be a necessary 
element in that form of government, is plain from their giving 
equal representation of the States in the Senate, and from the 
provision that each State shall have an equal voice in the choice 
of a President when the electoral colleges fail to elect. (Art. 2, 
sect. 1.) How can a sane man imagine that the Government 



8 

of tlie United States is not republican, and was not deemed to 
be so by its authors ? If this is not clear from what has been 
already said, it will be so from the further view that the only 
security the States have, not within themselves, of continuing 
to enjoy republican governments, is in the clause of guarantee, 
for, can it be conceived that that only security would be en- 
trusted to a government not itself republican ? There never 
lived men better fitted to establish republican governments, 
and to provide for their perpetuity, than the men of our revo- 
lutionary period. The usurpations of the mother country, 
utterly incompatible with the freedom of the colonies, necessa- 
rily turned their thoughts to political studies. The science of 
government was the subject of their meditation by day and by 
night. They were perfectly familiar with the republics of Rome, 
Sparta and Athens, and all the governments of the past, and 
knew their faults and their virtues. They saw in those 
republics the dangers of an unrestrained, tumultuous democ- 
racy. They also saw how unfit for our condition were govern- 
ments monarchical or aristocratic, and resolved to avoid the 
perils incident to them all. They determined to maintain 
their then well regulated State governments, which in their 
opinion, as is historically obvious, were republican, and 
to secure their perpetuity, by giving to the general Govern- 
ment — which they thought, as is equally plain, was also 
republican — the power and the ability to accomplish it. 

With this understanding of the term by the men who 
framed the Constitution, it would violate its legal meaning to 
give it a diiferent interpretation. It is a rule of construction 
applicable to every written instrument that its terms are to be 
understood, according to the intent of its framers, and this 
rule for very obvious reasons is especially applicable to a written 
Constitution. A difierent one would not only defeat the intent 
of its authors, but would cause the interpretation to be as change- 
able as the varying opinions of the hour. It would be one thing 
to-day, and another to-morrow. In regard to the term in ques- 
tion, the State governments would be now republican^ and, now 
anti-republican, — and thus, what was designed to be a fixed 



and well defiaed term, would be as shifting as the clouds. A 
result so absurd, so inconsistent with the object of a constitu- 
tion, demonstrates its unsoundness. The necessary and only 
safe principle is at all times to give to the terras used in such an 
instrument their intended meaning. If that meaning, in the 
case of a constitution, is thought by the people to be dangerous 
to their rights or injurious to their interest, they are not without 
remedy, for they can avert either difficulty by changing the 
constitution. The idea that universal suffrage is absolutely 
necessary to republican government, rests upon the assumption 
that the right to vote is inherent in man's nature and as 
inalienable as is his right to life or liberty, and, upon the further 
assumption that to deprive him of it virtually makes him a 
political slave. Both assumptions are altogether unwarranted ; 
first, because no government ever existed in which universal 
suffrage prevailed, and, as every school-boy knows, there have 
been governments of the republican form ; secondly, because 
freedom does not depend upon the rights of franchise, for if it 
did, then, in this country every male person under the age of 
twenty-one, and every female of any age, and every alien who 
has not consummated his naturalization, would not be free. 
The whole theory as to the right is erroneous ; it has no natural 
foundation whatever, but is the creature of positive law, and 
has been so considered from the beginning of the world's civili- 
zation to the present time by every writer on governments, and 
has been so treated by every government that history records. 
It has been made to depend upon sex, citizenship, age, resi- 
dence, and other circumstances, and such regulations have been 
different in different governments. No one until recently has 
denied that each government has the sole power to make and 
modify regulations of the kind at will, unlike the rights of life 
and liberty of which a man cannot be justly deprived, if he has 
committed no crime. It is for the people of every State to 
decide for themselves who among them shall be entitled to the 
elective franchise. When a majority makes that decision by a 
constitution of government, all are bound by it, and no one can 
claim the right except those to whom it is granted. And this 



10 

has been the uniform doctrine upon the suhject. The world, 
therefore, has been in error, and our fathers have shared in 
that error, if, as the political sciolists of our times maintain, 
this right is the same as that of life and liberty. But if their 
doctrine was correct, (instead of being pestilentially heretical,) 
it would follow that the right to he voted for is equally inherent 
and inalienable. And, yet, to this extent they do not at present 
go. The qualifications to hold office, in every republican govern- 
ment of which we have any knowledge, are different and higher 
than those required of the voter. Greater age, a longer resi- 
dence, and a higher property qualification, where such a quali- 
fication is to be possessed by the voter, have almost always been 
provided for. And no one in these days has ventured even to 
insinuate that provisions of this kind are incompatible with 
the nature of such a government, or violate any of the rights 
of man. 

II, The writer has very recently been informed that another 
ground than that of limited suffrage is relied upon by some of 
the members of Congress, known as radicals, to prove that the 
government of Maryland is not republican. It is because of the 
alleged unequal apportionment of representation in its legisla- 
ture. This, if possible, is more unfounded than the other. 
It has never before been doubted that it was for the people of 
each State to decide, without the interposition of the general 
Government, how their State shall be divided, both as regards 
territory and population, in reference to representation in its 
legislature. And to what extent there should be a territorial 
representation in that department, without regard to population, 
and a representation dependent upon population were matters, 
also, heretofore conceded to be within their sole power. In Mary- 
land, by her Constitution of '76, there was in part a territorial 
representation in the Senate, and a popular one in the House of 
Delegates, but in regard to neither was there equality. On the 
contrary, in relation to representation in the House, there was 
great inequality. That Constitution was framed by some of the 
wisest and most patriotic republicans known to history. They 



11 

never conceived that this inequality affected the republican nature 
of the government, or to any extent assimilated it to any other. 
In this happy ignorance, as our modern wiseacres would have 
it, they continued contentedly for very many years, and 
until the most, if not all of them, had descended into honored 
graves, leaving behind them names which their posterity will 
ever gratefully cherish and be proud of. At each subsequent 
change of our State government these inequalities have been 
found. The counties into which the State was divided, although 
they differed greatly in size and in population, were each of 
them entitled to one Senator in the Senate of the State, whilst 
in the other House the representation was not made to conform 
to anything like equality of population, and, during all 
this time, the people of the State and of the country in their 
simplicity believed that her government was republican. But 
if the test of equal representation as to population is admitted, 
what would be its practical operation? The population of a 
State, in its several divisions of counties or districts, varies from 
year to year, from month to month. To-day it may be 
the same in each ; to-morrow not ; to-day, according to this 
test, the government would be republican, to-morrow anti- 
republican ; so that the form of government which is to be 
judged of by its Constitution would not be fixed and immutable, 
but as changeable as the tides of population. Tliis ineffable 
absurdity proves the inadmissibility of the test. 

There has been, however, a Congressional Committee in 
session for a few months past inquiring whether the Govern- 
ment of Maryland is republican. Of the many witnesses they 
are said to have examined, all are of that very small party in 
the State known as Radical. That party was in power under 
the Constitution of '64, declared by competent authority to have 
been legally adopted. A. decided majority of the domestic vote 
was against it. It was carried, however, by a small majority, 
by the vote of the soldiers, most of whom, as was believed, were 
not legal voters. By that Constitution the franchise was lim- 
ited to white men, and of these a large majority were excluded 
by restrictions, in their nature unjust and punitive. Under 



12 

that Constitution a very small minority of lier people controlled 
the government of the State. And yet, notwithstanding the 
exclusion from the franchise of the blacks, and a large portion 
of the whites, the very parties who are seeking through Congress 
the destruction of our present government, never pretended 
that that of '64 was not republican. Strange inconsistency! 
Unsurpassed effrontery ! A minority government is republican ! 
A majority one is not ! The exclusion of the negroes and of 
the whites from the franchise in 1864 in no manner impeached 
the republican character of that Constitution, whilst the 
same exclusion of the blacks and the enfranchisement of the 
whites — who, as is proved by the election of the fifth of this 
month, constitute a large majority of alltlie male adults of the 
State, white and black — shews that our Government under 
the Constitution of 1867 is anti- republican ! Not only does 
the recent election prove that a large majority of all the male 
adults in Maryland, black and white, support her government, 
but that every county and the city of Baltimore have sent to the 
Legislature representatives of the same opinion. The majority 
for the Governor of the State, just elected, is without 
any precedent in her history, being 41,712. {forty-one thousand 
seven hundred and tivelve.) That election establishes an- 
other important fact — that the people of the State are 
now more dissatisfied with radical men and measures, than 
they were when they ratified their present Constitution, the 
majority in favor of that having been 24,124, whilst the one just 
stated was nearly twice as great. How strange is it then that there 
should be a committee appointed by the House of Represen- 
tatives sitting in secret (for they refused to permit a representa- 
tive of the State to be present, although he demanded it as a 
right, as he justly could) and endeavoring, through the testimo- 
ny of the men who framed and held office under the Constitu- 
tion of 1864, to prove that the present Constitution is not repub- 
lican. How absurd is it, too, in such an inquiry to examine 
witnesses. The form of a Government, its nature and character, 
when created by a written Constitution, must depend upon the 
Constitution itself. If that is not republican no oral testimony 



13 

can make it so ; and if it is republican, no such testimony can 
make it otherwise. It is reported, and the writer believes 
correctly, that the committee have inquired of witnesses, whether 
a particular appropriation of money was recently made by the 
municipal authorities of Baltimore to be used in preventing 
some anticipated legislation by the State, and in what manner 
was it used. What tendency such facts can have towards 
proving the character of the State Government, passes all 
reasonable comprehension. 

III. Has it ever been contended before, that under the guar- 
antee clause, Congress has a right to make a Constitution for a 
State ? And yet this is virtually what is now attempted in 
regard to Maryland, Delaware and Kentucky. 

If they can do this they have the power to decide when and 
how to do it. A startling pretension, certainly ! If there be 
any right ever held dear by the people of this country, it is 
that of forming their own State governments. But how is the 
power, if it exists, to be exerted ? Is Congress of itself to frame 
a Constitution and force it upon a State, not only without regard 
to, but against the known *vill of her people ? And is this to be 
done in the name and on behalf of republican Freedom ? 
Can any measure be more antagonistic to the idea of such 
Freedom? And if Congress is not to do the work itself, but 
to leave it to the people of the State, it can only accomplish 
the end by reserving the right to reject such a Constitution, 
as in the case of one framed by the people of a terri- 
tory. What then is to be the condition of States which 
insist upon a Constitution which is objectionable to Congress? 
They will be without a Constitution, or have one forced upon 
them by Congress which that body may approve. And what is 
the character of the force to be exerted ? It must be physical, 
not moral, military, not civil — which is State destruction. 
This is not making the military subordinate to the civil autho- 
rity, as the security of liberty requires, but paramount. It is, 
in fact, to give to Congress the power to establish military 
governments in every one of the States ; to subject the people 
of each, not to the mild influence of wise and humane laws, but 



14 

to the power of any military man whom Congress shall see proper 
to place over them, as Congress has done in relation to ten 
of the States of the Union. The result of this experiment 
has not been such as to commend it to the good sense 
and patriotic feeling of a free people, 

Mr. Stevens, of Pa., the very head and front of the radical 
portion of the republican party in the House of Representatives, 
in a recent letter to a German professor, (who, by the by, with 
wretched taste, says that our fathers failed to approach near " to 
the true principles of liberty," and that there is in the Constitu- 
tion a "great blot" and " heinous crime" — a gross libel upon our 
most illustrious dead,) maintains tliat, since what he errone- 
ously says has taken place, (the adoption of the 14th amend- 
ment) he has no doubt of the power of Congress " to regulate 
the elective franchise, so far as it regards the whole nation, in 
every State of the Union." The amendment confers no such 
power. It only provides : 1. That persons born in the United 
States, or naturalized and subject to its jurisdiction, are 
citizens thereof, and of the State of their residence. 2. That 
no State shall make or enforce any law which shall abridge the 
privileges and immunities of citizens of the United States- 
3. That no person shall be deprived of life, liberty, or property 
without due process of law, or be denied equal protection of the 
laws. There is nothing in either of these provisions from which 
the power in question can be implied. Under the Constitution, 
independent of this supposed amendment, the provisions as to 
the rights of citizens are the same as those of the amendment. 
And yet Mr. Stevens himself admits, what no one has until 
lately denied, that Congress had no authority to interfere with 
suffrage in the States. How then can the amendment be held 
to confer that authority ? I have said that in relation to this 
subject the Constitution and the amendment are the same. Are 
they not? Will' Mr. Stevens, or any other man of sense, main- 
tain that under the Constitution, without the amendment, a 
State could, by law, "abridge the privileges and immunities 
of citizens," or deprive any person " of life, liberty or property 
without due process of law." And these are all that the 



^5 

amenrlraent prohibits. The fact is, that the provisions just 
referred to are wholly unnecessary. If the amendment had 
contained but the single clause defining citizenship, the Con- 
stitution would have supplied all of the securities enumerated 
in the second and third clauses. If, therefore, as Mr. Stevens 
concedes, citizenship does not confer the right to vote, or 
give to Congress any power to confer it upon the citizen, the 
amendment gives neither the right nor the power. Indeed, to 
construe the clause otherwise would make it the duty of Con- 
gress to secure the franchise to every citizen, irrespective of 
age, residence, sex or color. For, if it be a right incident to 
citizenship. Congress has not only no power to deny or abridge 
it, but, on the contrary, is bound to protect it. The fact is, 
that Mr. Stevens' interpretation of the amendment is an entire 
misapprehension of its meaning and purpose. The original 
Constitution does not define citizenship, and difierent opinions 
upon the point having been entertained, the object of the 
amendment was merely to supply that omission, as it 
does by declaring that birth and naturalization shall give it. 
And, as it had been held by the Supreme Court, in the Dred 
Scott decision, that the desceadant of an African, born within 
the United States, was not a citizen, the language of the first 
clause was designedly made so comprehensive as to include that 
class. In fact, the design was to provide that the same circum- 
stances (birth or naturalization) shall make a black as well as a 
white man a citizen. It seems to me, then, perfectly plain 
that the exclusive right of the States to regulate suffrage, ad- 
mitted by Mr. Stevens to belong to them prior to the amend- 
ment, belongs to. them still. This must be so, unless citizen- 
ship in the United States of itself gives the right to vote — a 
proposition too extravagant to be believed in by any but a per- 
verted understanding. 

Upon the whole subject of the guarantee clause it is 
submitted: 1. That its meaning is entirely different from 
that which the radicals of the day impute to it. 2. That 
the existing governments of the States are and have always 
been republican in form. 3. That the sole office of the clause 



16 

is to secure to them that form. 4, That the opposite construc- 
tion would , in practice, be destructive of the rights of the States 

and of the people. 5. That such a construction is repudiated 
by the entire past history of our country. And, lastly, that 
there is nothing in the supposed 14th amendment which in any 
way enlarges the power of Congress in this respect. In what I 
have thus far said of the amendment, I have assumed that it has 
been constitutionally ratified. But this is certainly not the 
fact, unless the ten Southern States are not States of the Union. 
In my former pamphlet I quoted a recent decision of Chief 
Justice Chase, to shew that, in the judgment of the judi- 
cial department of the Government, their character as such 
States was not lost by the rebellion. His language is, that the 
rebellion did not '' effect, even" for a moment, the separation 
OF North Carolina from the Union." 

The contrary hypothesis goes upon the assumption that the 
late civil war extinguished them as such States, and gave to 
the United States the same title to the territory embraced 
within their boundaries, and the same authority over their people, 
as if they had been conquered from a foreign enemy. A word or 
two more upon this point. If this be true it would follow that 
the United States could transfer them and their people to another 
nation, for what is obtained by conquest, and has not after- 
wards become a State of the Union, the Grovernment of the 
Union can cede away. And, yet, so far, no one has been reckless 
enough to say that such a cession can be constitutionally made 
of these States. In truth, such an act would be a cession by the 
Government of a vital portion of itself. These States not 
having in the words of the Chief Justice "even for a moment" 
lost their character or connection with the Union as States, 
the amendment in question has not been ratified so as to make 
it a part of the Constitution. 

IV. The impeachment power. Upon this point the writer thinks 
that very erroneous and mischievous doctrines are held by some 
of our public men. These errors are: 1. As to what may be the 
subject of the power. 2. As to what Congress can do pending the 
trial. The provisions of the Constitution are, in regard to the 



17 

first: that the impeachment is to be for "treason, bribery or other 
high crimes and misdemeanors;" and upon the second: that when 
the President is impeached (and to that case the writer will 
confine himself) the trial shall be by the Senate, and that two- 
thirds of the members present shall be necessary to a conviction, 
and that the judgment is not to extend "further than to re- 
moval from office and disqualification to hold and enjoy any 
oflSce of honor, trust or profit under the United States." 
1. From the beginning of the Government it has been 
uniformly decided by the Supreme Court that there are no 
common law offences prohibited by the Constitution except such as 
are specially named. In the clause before us the only ofiences 
so designated are treason and bribery. For the nature of these 
offences the courts have a right to refer to the common law for 
their definition. But it is otherwise as to the general terms 
high crimes and misdemeanors. These not being specified, and 
there being no common law jurisdiction in the courts of the 
Union, they can not take cognizance of them without statutory 
authority. If this was not so, the doctrine of the judiciary 
would be palpably wrong. But if it be wrong — if there 
may_, under this clause, be a crime and misdemeanor not made so 
by statute — this is certain, that there must be some law making 
it so. No act, therefore, which the President may do is cause of 
impeachment unless it be treason or bribery, or declared criminal 
by statute or the common law. Any other construction would 
place it in the power of the House of Representatives to make 
any act of the President, though not prohibited by law and 
wholly innocent, a crime and misdemeanor, which would be to 
place the President in absolute dependence upon Congress, con- 
trary to the obvious design of the Constitution. The result is, 
that the President can only be impeached for treason or.bribery 
or for some act made by statute a high crime and misdemeanor. 
Any alleged violation of a supposed duty, not made a crime by 
statute, any alleged violation of party fealty, any use of his 
official patronage which politicians may find fault with, or which 
may have proved injurious to the public interest, are not causes 
of impeachment. 



18 

2. — What power has Congress during the trial ? It is con- 
tended, and, as the writer believes, for the 5rst time, that by 
statute the President may be suspended from all the func- 
tions of his office. Clearly, this power is not in terms given by 
the Constitution. On the contrary, by its very words he is to 
remain in office until he shall have been constitutionally con- 
victed — a conviction which can only be had upon the vote of 
two-thirds of the Senators present. If the convention had 
designed to give to Congress the power in question, is it con- 
ceivable that they would not have done so in plain terms ? If 
they had deemed such a suspension to be necessary to the public 
good, would they have left it to depend entirely upon the 
discretion of Congress? Or would they not, as in the case of 
his permanent removal, have made it the subject of Constitu- 
tional provision ? But we are not left, however, to mere 
argument upon the subject. The power, it was suggested by a 
member of the convention, should be delegated to Congress. 
The suggestion met with no favor — it wasgeaerally repudiated. 
Amongst others, Mr. Madison opposed it upon the ground that 
it would enable a mere majority of each House to effect the 
temporary removal of a President who might prove obnoxious 
to them, and to take to themselves the benefit of all the 
patronage of the office, by placing in it some person who 
would dispose of such patronage to their advantage. (It will 
not be deemed extravagant or unjust to add, that the foresight 
of Mr. Madison is illustrated by what, it is said, is now con- 
templated by some of the leading men of the radical branch of 
the republican party.) But the doctrine is not only without 
warrant in the Constitution, but is repugnant to its obvious 
purpose. 

The whole executive power is vested in the President, 
and he holds it subject only to removal when convicted on 
impeachment, and, with that exception, not under, but against 
any power conferred upon Congress. In many respects it is 
given to bim to check the inconsiderate or unconstitutional acts 
of that body. He is to be elected by electors chosen by the people, 
and no authority is given to Congress in regard to the election, 



19 

except in the contingency of the failure of the electors to elect. 
The House of Representatives has no control over him except by 
impeachment, and the Senate can only convict upon the judgment 
of two-thirds of its members. His power to arrest the legislation 
of Congress by veto, can not be overruled, except b}"- two-thirds 
of each House. It is evident from these several provisions that it 
■was not the design to subject him or his powers to the authority 
of a mere majority of the legislature. The practical result of a 
power to suspend might be to work his removal. The House 
mpeaches, and the majority of that body an I of the Senate sus- 
pends during the trial ; two-thirds of the latter branch cannot 
be brought to convict ; the House again impeaches and suspen- 
sion is again provided for ; and the same proceeding may be 
resorted to, on every successive failure in the Senate to convict, 
until his term of office expires. During the whole period 
the executive power of the Grovernment is to be wielded by a 
man, not selected by the people, but by a bare majority of each 
House. Can it be imagined that such results as these were 
contemplated by the Convention? If it cannot, it is submitted 
that the power has no place in the Constitution. The writer, 
therefore, maintains that there can be no impeachment except 
for treason or bribery, or for some act which by statute has 
been made a high crime and misdemeanor.* 

V. The settled opinion of this country (justified by all 
history) has ever been, that political liberty and individual 
rights, can be best secured by a written Constitution, limiting 
and defining the powers of the Government. Unrestricted 
power, whether vested in one or in many, is always dangerous. 
It is but the power of the despot, fatal alike to social and 
private rights and interests. It is, therefore, all important 
that the public mind shall adhere to the opinions upon this 
subject, which our fathers firmly and devotedly held. Until 
very recently, the considerate men of the country, were becoming 
apprehensive, that a majority of our people were about to 
abandon these principles. The result of the elections during 
this and the preceding month has cheered them with a hope 



* See further on the point Appendix. 



20 

that sucli will not be the case. The voice which these elections 
have uttered is so commanding, that, if it does not fail to arrest 
the course of the present Congress, and force them to adopt a 
conservative and Constitutional policy, it will soon call into 
power a different set of servants. The writer, for himself, has 
not fully shared in those apprehensions. He has always felt a 
conviction, that the assaults upon the Constitution — the viola- 
tion of its most sacred provisions — and the distracted and dis- 
tressed condition to which the country would be brought by 
them, would at an early day awaken the patriotism and love 
of freedom, which he believes are too deeply seated in the 
hearts of the people ever to be eradicated. That the Constitu- 
tion has not been and is not now observed by the dominant 
party in Congress, he thinks he has demonstrated. 

That the condition of the country is a distressing one all 
must admit. Who has read a recent address of, a convention 
of the white citizens of South Carolina without sympathy and 
pain ? The sad state of their section they describe with a 
touching eloquence, power, and truth, which must excite admi- 
ration and awaken solicitude. They have made their appeal, 
not in a pusillanimous, but in a manly and patriotic spirit. 
They invoke the justice and humanity of their race — express 
no hostility to the rightful authority of the United States 
— admit that the doctrine of secession can no longer be 
maintained, and that the institution of slavery is terminated 
forever. In their own words, " slavery is at an end," and they 
disclaim any purpose or wish to reinstate it. What they ask 
is, to be permitted to participate, equally with the Northern men 
of their race, in the privileges and securities of a common gov- 
ernment. They, above all, implore such brethren not to subject 
them to the dominion of an ignorant African race, just emerged 
from slavery, uneducated, devoid of all knowledge of the 
principles upon which rest our free institutions, and who can 
only become the instruments of bad and designing men. What 
they want, is peace, benign peace, which carries with it security 
and happiness, — not the peace which reigns in the home- 
stead whose inmates have been butchered by a savage foe, not 



21 

the peace of the desert — but peace guarded and protected 
by civil laws, such as freemen have a right to demand. 
Disclaiming any " factious opposition to the reconstruction 
acts of Congress," they tell us for what they desire peace ; 
that it is to enable them to build upon waste places "our 
temples of worship, our sacked and ruined cities now lying in 
ashes, our dismantled dwellings and our prostrate credit, 
for its holy christian influence, and for the civilization and 
refinement which spring up in its path." Shall this appeal 
be in vain ? Forbid it, justice! Forbid it humanity! Forbid 
it, our common origin, our past aad equal renown as 
defenders of the rights and honor of our nation upon the 
ocean and the land, and as equal contributors, in the 
public councils, to the safety, prosperity and happiness of 
the whole country ! But, the writer has no fear that the 
appeal will be in vain. For it is, now, the demonstrated 
determination of the white men of the North, the East_, the 
West, and the far Pacific, to have the Constitution respected, 
and to continue the governments. State and national, exclu- 
sively in the hands of men of their own race. When this is 
done, the South will soon be restored to former prosperity — 
will be once more a storehouse largely contributing to the 
wealth and happiness of the nation — and be, as in the past, 
the abode of the intelligent and refined, dispensing an elegant 
hospitality, which has ever been proverbial. And then, better 
than all, her people and those of the other States will be bound 
together by ties far stronger than any that Constitutions can 
create — the ties of mutual interest and affection. 

A MARYLANDER. 



APPENDIX. 

Since tlie first edition of this Pamphlet the writer has been 
informed that some of the members of Congress profess to be of 
the opinion that that Body can, by statute, declare that pen- 
dency of an impeachment of the President shall constitute a 
disability, on his part, to perform the functions of his office. 
It is supposed tiiat, by such legislation, he may be brought 
within the meaning of the clause in the first section of the 
second article of the Constitution, which provides for his re- 
moval for, amongst other causes, his " inability to discharge 
the powers and duties thereof." The answers to the proposi- 
tion are several and conclusive : 

I. The clause does not contemplate a mere suspension or 
temporary removal. The removal provided for in such a case 
is the same as that which is to result from a conviction upon 
impeachment, or from death or resignation, which, of course, 
is not a temporary, but a permanent one. The removal on 
conviction is also not only permanent, but is followed by the 
further judgment of disqualification to hold any other office 
under the Government. It will hardly be maintained that 
Congress can, b}' statute, create a greater punishment than 
this, or make it less The subject was evidently not designed 
to be submitted to the discretion of Congress. This being so, 
for the same reason Congress is not entrusted with the power 
to declare any other judgment in the case of a removal from 
" inability," than the one which is to ensue the happening of 
either of the other events mentioned in the clause. 

II. The " inability " mentioned, is such an inability as ren- 
ders the President permanently incapable of discharging his 
duties. Any other interpretation would give to Congress the 
authority to provide that temporary absence from the seat of 
Government, or temporary sickness, or any other event, should 



23 

constitute an inability. There is, also, no judicial judgment to 
be pronounced in such a case. The removal, as in the case of 
death or resignation, is to take place the moment the contin- 
gency happens, and the duties of the office instantly devolve 
upon the Vice-President. 

III. — As the judgment, on impeachment, inflicts no personal 
punishment — as the trial may go on as well without as with 
the presence of the President in the Senate, and as that Body 
has no authority to compel his attendance — it is obvious that 
he is just as capable, during the trial, to perform the duties 
of his office, as he is before or after a judgment of acquittal. 
Under the power to pass all laws necessary and proper to 
execute the powers granted, no such authority, as the one in 
question, belongs to Congress^ no legislation being necessary 
to effect the object of the clause — that being accomplished 
the moment the event occurs of an "inability," within the 
Constitutional meaning of that term. 

MARYLANDER. 



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